ex10-2.htm


    
      
        

      
Exhibit 10.2


    REGISTRATION RIGHTS
AGREEMENT

    


    This REGISTRATION RIGHTS
AGREEMENT (the “Agreement”) dated as
of December 22, 2009 by and among Omega Healthcare Investors, Inc., a Maryland
corporation (the “Company”),
CapitalSource Inc., a Delaware corporation (“CapitalSource”), CHR
HUD Borrower LLC, a Delaware limited liability company (“CHR HUD Borrower”),
CSE Mortgage LLC, a Delaware limited liability company (“CSE Mortgage”), CSE
SLB LLC, a Delaware limited liability company (“CSE SLB”), CSE SNF
Holding LLC, a Delaware limited liability company (“CSE SNF”) and
CapitalSource Healthcare REIT, a Maryland real estate investment trust (“CSH
REIT”).  CapitalSource, CHR HUD Borrower, CSE Mortgage, CSE
SLB, CSE SNF and CSH REIT are collectively referred to herein as the “Stockholders.”

     

    WHEREAS, the Company and
certain of the Stockholders are parties to the Purchase Agreement;
and

     

    WHEREAS, pursuant to the terms
of the Transaction Documents, the Company has agreed to issue shares of Common
Stock to the Stockholders and to enter into this Agreement granting certain
registration rights with respect to such Common Stock on the terms and subject to the conditions set forth
herein.

     

    NOW, THEREFORE, in
consideration of the mutual covenants herein contained and other valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto hereby agree as follows:

     

    1.           Certain
Definitions.

     

    As used
in this Agreement, the following terms shall have the following
meanings:

     

    “Affiliate” shall mean
with respect to any Person any direct or indirect
subsidiary of such Person and any other Person directly or indirectly
controlling, controlled by, or under common control with such
Person.  As used in this definition, “control” (including with
correlative meanings, “controlled by” and “under common control with”) means
possession, directly or indirectly, of the power to direct or cause the
direction of management or policies, or the power to appoint and remove a
majority of the board or other governing body (whether through ownership of
securities or partnership or other ownership interests, by contract or
otherwise), of a Person.

     

    “Business Day” shall
mean a day other than a Saturday, Sunday or other day on which commercial banks
in New York City are required by Law to close.  Any event the
scheduled occurrence of which would fall on a day that is not a Business Day
shall be deferred until the next succeeding Business Day.

     

     “Common Stock” shall
mean the Company’s common stock, par value $ 0.10 per share, and any securities
into which such shares may hereinafter be reclassified.

     

    “Filing Date” shall
mean:

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    (a)           with
respect to Registrable Securities issued at the Core Portfolio Closing
Date:

     

    (i)           January
15, 2010 if the Core Portfolio Closing Date occurs on or before December 31,
2009 and Stockholders have provided to Buyer the Property Financial Statements
(as defined in the Purchase Agreement) on or before December 18,
2009;

     

    (ii)          fifteen
(15) days subsequent to the Core Portfolio Closing Date if the Core
Portfolio Closing date occurs after December 31, 2009 and prior to
January 29, 2010, and Stockholders have provided to Buyer the Property Financial
Statements (as defined in the Purchase Agreement) on or before the fifth
(5th) day prior to the Core Portfolio Closing Date; 

     

    (iii)         in
all other cases, fifteen (15) days after the later of (A) the Core Portfolio
Closing Date, and (B) the delivery of the 2009 Property Financial Statements to
Buyer, but in no event earlier than five (5) Business Days after the Company
files its Annual Report on Form 10-K for the year ended December 31, 2009;
and

     

    (b)           with
respect to Registrable Securities issued other than as of the Core Portfolio
Closing Date, fifteen (15) days after the later (i) of the issuance of such
Registrable Securities and (ii) the delivery to Buyer of the Property Financial
Statements, 2009 Financial Statements, Updated HUD Property Financial
Statements, and Casablanca Financial Statements to the extent required to be
delivered prior to such  date pursuant to the Transaction
Documents.

     

    “GAAP” shall mean
generally accepted accounting principles in the United States of America,
applied on a consistent basis and applied to both classification of items and
amounts, including without limitation, the official interpretations thereof by
the Financial Accounting Standards Board, its predecessors and
assigns.

     

    “Person” shall mean
any individual, corporation, partnership, limited liability company, firm, joint
venture, association, joint-stock company, trust, unincorporated organization,
Governmental Authority or other entity.

     

    “Prospectus” shall
mean the prospectus included in any Registration Statement, as amended or
supplemented by any prospectus supplement, with respect to the terms of the
offering of any portion of the Registrable Securities covered by such
Registration Statement and by all other amendments and supplements to the
prospectus, including post-effective amendments and all material incorporated by
reference or deemed to be incorporated by reference in such
prospectus.

     

    “Purchase Agreement”
shall mean the Securities Purchase Agreement, dated as of November 17, 2009, by
and among the Company, and such Stockholders and any other parties identified on
the signature pages thereto, as such agreement has been amended through the date
hereof and may be further amended from time to time after the date
hereof.

     

    
      
        
        

      

      
        2

        
          

        

      

      
        
        

      

    

     “Register,” “registered” and
“registration”
refer to a registration made by preparing and filing with the SEC a Registration
Statement or similar document in compliance with the 1933 Act, and the
declaration or ordering of effectiveness of such Registration Statement or
document.

     

    “Registrable
Securities” shall mean the Shares and any other securities issued or
issuable in exchange for the Shares; provided, however, that a
security shall cease to be a Registrable Security upon (A) sale pursuant to a
Registration Statement or Rule 144 under the 1933 Act, or (B) such security
becoming eligible for sale by a Stockholder pursuant to Rule 144 without being
subject to a volume limitation.

     

    “Registration
Statement” shall mean any registration statement of the Company filed
with the SEC under the 1933 Act that covers the resale of any of the Registrable
Securities pursuant to the provisions of this Agreement, amendments and
supplements to such registration statement, including post-effective amendments,
all exhibits and all material incorporated by reference or deemed to be
incorporated by reference in such registration statement, including the Shelf
Registration Statement.

     

    “S-X 3-14 Financial
Statements” shall mean the financial statements for the properties
acquired and to be acquired by Buyer pursuant to the Transaction Documents, for
the periods required by applicable SEC requirements with respect to acquired
real estate operations, and prepared in accordance with GAAP (except, in the
case of unaudited statements, as permitted by the applicable rules and
regulations of the SEC), applied on a consistent basis during the period
involved (except as may be indicated in the notes thereto and subject, in the
case of unaudited statements, to normal year-end adjustments).

     

    “SEC” shall mean the
U.S. Securities and Exchange Commission.

     

    “Shares” shall mean
the shares of Common Stock issued pursuant to the Transaction Documents and held
by the Stockholders and any permitted assignees to which shares have been
transferred.

     

    “Stockholders” shall
have the meaning set forth in the Preamble.

     

    “Transaction
Documents” shall mean the Purchase
Agreement, the Casablanca Option Agreement (as such term is defined in the
Purchase Agreement) and the Note (as such term is defined in the Purchase
Agreement), as such documents has been amended through the date hereof
and may be further amended from time to time after the date hereof.

     

    “WKSI” shall mean a
well-known seasoned issuer as defined under Rule 405 of the 1933
Act.

     

    “1933 Act” shall mean
the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder.

     

    “1934 Act” shall mean
the Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder.

     

    
      
        
        

      

      
        3

        
          

        

      

      
        
        

      

    

    2.           Registration.

     

    (a)           Shelf Registration
Statement.  Promptly following each issuance of Registrable
Securities but in no event later than the Filing Date with respect to such
issuance, the Company shall prepare and file with the SEC one or more
Registration Statements on Form S-3, or shall file one or more Prospectus
supplements under the Company’s existing Form S-3 automatic shelf registration
statement,  (or, if Form S-3 is not then available to the Company, on
such form of registration statement as is then available to effect a
registration for resale of the Registrable Securities, subject to the
Stockholders’ consent), pursuant to Rule 415 under the Securities Act, covering
the resale of the Registrable Securities on a delayed or continuous basis (the
“Shelf Registration
Statement”) to the extent not already registered on a previously filed
and effective Registration Statement.  Such Shelf Registration
Statement also shall cover, to the extent allowable under the 1933 Act and the
rules promulgated thereunder (including Rule 416), such indeterminate number of
additional Registrable Securities resulting from stock splits, stock dividends
or similar transactions with respect to the Registrable
Securities.  The Shelf Registration Statement (and each amendment or
supplement thereto, and each request for acceleration of effectiveness thereof)
shall be provided in accordance with Section 3(c) hereof to the Stockholders,
the Stockholders’ designated counsel, and their designated underwriters if any,
at a reasonable time prior to its filing or other submission.

     

    (b)           Expenses.  The
Company will pay all expenses incurred by it in connection with each
registration, including filing and printing fees, the Company’s counsel and
accounting fees and expenses, costs associated with clearing the Registrable
Securities for sale under applicable state securities laws and listing fees, but
excluding discounts, commissions, fees of underwriters, selling brokers, dealer
managers or similar securities industry professionals with respect to the
Registrable Securities being sold and fees of the Stockholders’ counsel, and the
cost of preparing and the S-X 3-14 Financial Statements; provided however, that the
Stockholders shall reimburse the Company for all expenses incurred by it (if
any) to update or supplement the Registration Statement or Prospectus if and to
the extent required on more than two occasions per year as a result of transfers
or assignments of Registrable Securities pursuant to Section 6(c)
hereof.

     

    (c)           Effectiveness.

     

    (i)           If
the Company is eligible as a WKSI, the Registration Statements shall utilize the
automatic shelf registration process under Rule 415 and Rule 462. If the Company
is not a WKSI or is otherwise ineligible to utilize the automatic shelf
registration process, the Company shall use commercially reasonable efforts to
have each Registration Statement declared effective as soon as practicable
following the filing thereof.  The Company shall notify the
Stockholders by facsimile or e-mail as promptly as practicable after any
Registration Statement is declared effective and shall as soon as reasonably
practicable provide the Stockholders, without charge, with a copy of any related
Prospectus (including any amendments, supplements and exhibits thereto) and such
other documents (including any documents incorporated into the Registration
Statement by reference) as the Stockholders may reasonably request in order to
facilitate the sale or other disposition of the securities covered
thereby.  The Company represents and warrants that it is a WKSI as of
the date hereof.

     

    
      
        
        

      

      
        4

        
          

        

      

      
        
        

      

    

    (ii)           Notwithstanding
anything to contrary, the Company may delay, suspend the use of or withdraw any
Registration Statement if Company in good faith determines that any such
Registration Statement, or the use thereof, would materially and adversely
affect any material corporate event or would otherwise require disclosure of
nonpublic information which disclosure the Company determines, in its reasonable
judgment, is not in the best interests of the Company at such time, or, if the
Company determines, in its reasonable judgment, that an event described in
Section 3(h) has occurred (each, an “Allowed Delay”);
provided, however, that the
Company shall promptly (a) notify the Stockholders in writing of the existence
of the event giving rise to an Allowed Delay, (b) advise the Stockholders in
writing that all sales must cease under the Registration Statement until the end
of the Allowed Delay and (c) use commercially reasonable efforts to terminate an
Allowed Delay as promptly as practicable consistent with the best interests of
the Company.  Notwithstanding anything herein to the contrary, (A) the
Company shall not be required to disclose material nonpublic information to the
Stockholders and (B) the  Company’s rights to delay or suspend the use
of any Registration Statement or qualification of Registrable Securities during
the pendency of any Allowed Delay shall not, in the aggregate, cause the
Stockholders to be required to suspend sales of the Shares pursuant to the
Registration Statement or relieve the Company of its obligation to file, amend
or supplement and maintain the effectiveness of a Registration Statement for a
period exceeding (i) forty-five (45) consecutive days or (ii) ninety (90) days
during any twelve (12) month period.

     

    (d)           Underwritten
Offerings.

     

    (i)           Until
the expiration of the Effectiveness Period, the Company shall notify the
Stockholders in writing at least two (2) Business Days prior to the filing of
any registration statement or Prospectus under the 1933 Act (excluding a
registration or Prospectus relating solely to employee benefit plans, or a
registration relating to a corporate reorganization or other transaction on
Form S-4, or a registration on any registration form that does not permit
secondary sales) for purposes of a firm commitment underwritten public offering
of Common Stock by the Company (an “Underwritten
Offering”) and will include in such Underwritten Offering all or part of
the Registrable Securities held by the Stockholders to the extent and on the
terms and conditions set forth herein.  If the Stockholder elects to
include in any such Underwritten Offering all or a portion of the Registrable
Securities, the Stockholders shall, within one (1) Business Day after the
above-described notice from the Company, so notify the Company in
writing.

     

    (ii)           The
right of the Stockholders to include Registrable Securities in an Underwritten
Offering pursuant to this Section 2(d) shall be conditioned upon the
Stockholders’ participation in such underwriting and the inclusion of the
Stockholders’ Registrable Securities in the underwriting to the extent provided
herein.  In order to distribute its Registrable Securities through
such Underwritten Offering, the Stockholders shall enter into an underwriting
agreement in customary form with the underwriter or underwriters selected for
such underwriting by the Company, and shall deliver all such documents and
materials reasonably requested by the underwriters and the Company on a timely
basis.  Notwithstanding any other provision of this Agreement, if the
underwriter determines in good faith that marketing factors require a limitation
of the number of shares to be underwritten in an Underwritten Offering, the
number of shares that may be included in such Underwritten Offering shall be
allocated as follows: (A) the Company shall be entitled to priority in
registration with respect to shares generating the first $50 million of gross
proceeds; and (B) the remaining shares to be included in such Underwritten
Offering shall be allocated equally between the Company on the one hand and the
Stockholders on the other. The Company shall have the right to terminate any
Underwritten Offering initiated by it under this Section 2(d) prior to execution
of an underwriting agreement whether or not the Stockholders have elected to
include securities in such registration.

     

    
      
        
        

      

      
        5

        
          

        

      

      
        
        

      

    

    (iii)           In
connection with any Underwritten Offering in which the Stockholders participate
or are invited to participate in accordance with this Section 2(d), the
Stockholders hereby agree that they will agree in writing to any restrictions on
sale of the Registrable Securities owned by the Stockholders that are requested
by the managing underwriter for a period not to exceed ninety (90) days; provided, however, that such
restrictions shall not be imposed unless restrictions as least as burdensome are
imposed on each executive officer and director of the Company.

     

    3.           Company
Obligations.  The Company will use commercially reasonable
efforts to effect the registration of the Registrable Securities in accordance
with the terms hereof, and pursuant thereto the Company will, as expeditiously
as possible:

     

    (a)           use
commercially reasonable efforts to cause such Registration Statement to remain
continuously effective for a period that will terminate upon the earlier of (i)
the date on which all Registrable Securities have been sold, or (ii) the date on
which all Registrable Securities (other than with respect to Registrable
Securities owned by Affiliates of the Company) may be sold pursuant to Rule 144
without being subject to any volume limitation (the “Effectiveness
Period”);

     

    (b)           prepare
and file with the SEC such amendments, Prospectus supplements or post-effective
amendments to the Registration Statement and the Prospectus as may be necessary
to keep the Registration Statement effective for the Effectiveness Period and to
timely comply with the provisions of the 1933 Act and the 1934 Act with respect
to the distribution of all of the Registrable Securities covered thereby and,
upon fifteen (15) Business Days’ notice, shall file any supplement or amendment
to the Registration Statement and Prospectus with respect to the plan of
distribution or the Stockholders’ ownership interests in its Registrable
Securities that is reasonably necessary to permit the sale of such Registrable
Securities pursuant to the Registration Statement;

     

    (c)           provide
copies to and permit the Stockholders’ counsel, and its underwriters, if any, to
review each Registration Statement and all amendments and supplements thereto no
fewer than five (5) Business Days prior to their filing with the SEC and not
file any document to which such counsel reasonably objects based upon such
counsel’s belief that such Registration Statement is not in compliance with
applicable laws, rules or regulations or contains a material misstatement or
omission or any underwriters or Stockholders reasonably object;

     

    
      
        
        

      

      
        6

        
          

        

      

      
        
        

      

    

    (d)           furnish
to the Stockholders, its legal counsel, and any underwriters, promptly after the
same is prepared and publicly distributed, filed with the SEC, or received by
the Company (but not later than three (3) Business Days after the filing date,
receipt date or sending date, as the case may be), (A) one (1) copy of any
Registration Statement and any amendment thereto, and (B) such number of copies
of each preliminary Prospectus and Prospectus and each amendment or supplement
thereto, and each letter written by or on behalf of the Company to the SEC or
the staff of the SEC, and each item of correspondence from the SEC or the staff
of the SEC, in each case relating to such Registration Statement (other than any
portion of any thereof which contains information for which the Company has
sought confidential treatment) as the Stockholders may reasonably request in
order to facilitate the disposition of the Registrable Securities owned by the
Stockholders that are covered by each Registration Statement;

     

    (e)           use
commercially reasonable efforts to (i) prevent the issuance of any stop order or
other suspension of effectiveness and, (ii) if such order is issued, obtain the
withdrawal of any such order at the earliest possible moment;

     

    (f)           prior
to any public offering of Registrable Securities, use
all  commercially reasonable efforts to register or qualify, or exempt
therefrom, or cooperate with the Stockholders, their counsel, and any
underwriters in connection with the registration or qualification, or exemption
therefrom, of such Registrable Securities for offer and sale under the
securities or blue sky laws of such jurisdictions requested by the Stockholders
and do any and all other commercially reasonable acts or things necessary or
advisable to enable the distribution in such jurisdictions of the Registrable
Securities covered by the Registration Statement; provided, however, that the
Company shall not be required in connection therewith or as a condition thereto
to (i) qualify to do business in any jurisdiction where it would not otherwise
be required to qualify but for this Section 3(f), (ii) subject itself to general
taxation in any jurisdiction where it would not otherwise be so subject but for
this Section 3(f), or (iii) file a general consent to service of process in any
such jurisdiction;

     

    (g)           use
commercially reasonable efforts to cause all Registrable Securities covered by a
Registration Statement to be listed on each securities exchange, interdealer
quotation system or other market on which similar securities issued by the
Company are then listed;

     

    (h)           immediately
notify the Stockholders in writing, at any time when a Prospectus relating to
Registrable Securities is required to be delivered under the 1933 Act (including
during any period when the Company is in compliance with Rule 172), upon
discovery that, or upon the happening of any event or the passage of time as a
result of which, the Prospectus included in a Registration Statement, as then in
effect, includes an untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing, and at the
request of the Stockholders, promptly prepare and furnish to the Stockholders a
reasonable number of copies of a supplement to or an amendment of such
Prospectus or the Registration Statement as may be necessary so that, as
thereafter delivered to the purchasers of such Registrable Securities, such
Prospectus shall not include an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then
existing;

     

    
      
        
        

      

      
        7

        
          

        

      

      
        
        

      

    

    (i)           use
commercially reasonable efforts to timely make and keep public information
available, as that term is understood and defined in, and required under, Rule
144 under the 1933 Act, at all times;

     

    (j)           if,
subsequent to thirty (30) days after the applicable Filing Date as defined in
clause (a) of the definition of Filing Date in Section 1 hereof, the Company has
failed to initiate an Underwritten Offering allowing for Stockholders’
participation in accordance with Section 2(d)(i) hereof, and the Stockholders
have provided fifteen (15) days’ notice that they intend to engage an
underwriter or underwriters to offer and sell all, or a portion of the
Registrable Securities anticipated to generate gross proceeds exceeding $50
million (a “Secondary Underwritten Offering”), enter into customary agreements
(including an underwriting agreement in customary form for the managing
underwriters with respect to issuers of similar market capitalization and
reporting and financial histories, and no more burdensome on the Company than
such agreements customarily entered into between the Company and its
underwriters) and take such other reasonable actions in connection therewith in
order to expedite or facilitate the disposition of the Registrable Securities
included in such Registration Statement and: (A) make representations and
warranties to the Stockholders and to each of the underwriters, in such form,
substance and scope as are customarily made to the managing underwriter or
underwriters by issuers of similar market capitalization and reporting and
financial histories (but no more burdensome on the Company than customarily
provided by the Company in underwritten offerings) and confirm the same to the
extent customary if and when requested; (B) obtain negative assurance letters,
opinions of counsel to the Company and updates thereof addressed to the
Stockholders and to each of the underwriters, such negative assurance letters,
opinions and updates to be in customary form and covering the matters
customarily covered in negative assurance letters and opinions obtained in
underwritten offerings by the managing underwriter or underwriters for issuers
of similar market capitalization and reporting and financial histories (but no
more burdensome on the Company than customarily provided by the Company in
underwritten offerings); (C) use commercially reasonable efforts to obtain
"comfort" letters and updates thereof from the Company's independent certified
public accountants addressed to the Stockholders and to each of the
underwriters, such letters to be in customary form and covering matters of the
type customarily covered in "comfort" letters to the managing underwriter or
underwriters in connection with underwritten offerings by them for issuers of
similar market capitalization and reporting and financial histories (but no more
burdensome on the Company than customarily provided by the Company in
underwritten offerings); (D) provide, in the underwriting agreement to be
entered into in connection with such offering, indemnification provisions and
procedures no less favorable than those set forth in Section 5 hereof with
respect to all parties to be indemnified pursuant to such Section 5; and (E)
deliver such customary documents and certificates as may be reasonably requested
by the Stockholders and the managing underwriter or underwriters to evidence
compliance with this paragraph (j) and with any customary conditions contained
in the underwriting agreement entered into by the Company in connection with
such offering (but no more burdensome on the Company than customarily provided
by the Company in underwritten offerings); provided however that
the Company shall have a right to make a reasonable objection to the
Stockholders’ choice of underwriters within two (2) Business Days of notice of
the underwritten offering, it being understood that Company’s failure to give
notice of such objection to Stockholders shall be deemed approval of such choice
of underwriters; and; provided, however, that in the
event the Company notifies CapitalSource within five (5) Business Days of
receipt of the notice of Secondary Underwritten Offering that the Company plans
to promptly commence an Underwritten Offering pursuant to Section 2(d), and
afford Stockholders the right to include in such Underwritten Offering the
greater of (x) one-half of the number of shares the Stockholders intended to
include in the Secondary Underwritten Offering, or (y) such number of shares as
they would otherwise be entitled to include in accordance with Section 2(d),
then the Company’s obligations under this paragraph (j) shall be deferred until
the completion or abandonment of such Underwritten Offering, but in no event
longer than 30 days.

     

    
      
        
        

      

      
        8

        
          

        

      

      
        
        

      

    

    (k)           otherwise
use commercially reasonable efforts to comply with all applicable rules and
regulations of the SEC under the 1933 Act and the 1934 Act and take such other
actions as may be reasonably necessary to facilitate the registration of the
Registrable Securities hereunder.

     

    4.           Obligations of the
Stockholders.

     

    (a)           The
Stockholders shall furnish in writing to the Company such information regarding
itself and the Registrable Securities held by them as shall be reasonably
required to effect the registration of such Registrable Securities and shall
execute such documents in connection with such registration as the Company may
reasonably request.  At least ten (10) Business Days prior to the
first anticipated filing date of any Registration Statement or Prospectus, the
Company shall notify the Stockholders of the information the Company requires in
order to have the Registrable Securities included in the Registration
Statement.  The Stockholders shall provide such information to the
Company at least three (3) Business Days prior to each anticipated filing date
of such Registration Statement.  The Company may delay the filing of
any Registration Statement or Prospectus hereunder if required information from
any Stockholder is not furnished to the Company within the three (3) Business
Days.

     

     (b)          The
Stockholders agree to cooperate with the Company as reasonably requested by the
Company in connection with the preparation and filing of a Registration
Statement hereunder, unless the Stockholders have notified the Company in
writing of their election to exclude all of the Registrable Securities from such
Registration Statement.

     

    (c)           The
Stockholders agree that, upon receipt of any notice (which may be oral as long
as written notice is provided by the next day) from the Company of either (i)
the commencement of an Allowed Delay pursuant to Section 2(c)(ii) or (ii) the
happening of an event pursuant to Section 3(h) hereof, the Stockholders will
immediately discontinue the disposition of Registrable Securities pursuant to
the Registration Statement covering such Registrable Securities, until otherwise
notified in writing by the Company or until the Stockholders’ receipt of the
copies of the supplemented or amended Prospectus filed with the SEC and until
any related post-effective amendment is declared effective and, if so directed
by the Company, the Stockholders shall deliver or cause to be delivered to the
Company (at the expense of the Company) or destroy or cause to be destroyed (and
deliver to the Company a certificate of destruction) all copies in the
Stockholders’ possession of the Prospectus covering the Registrable Securities
current at the time of receipt of notice of an event described in Section 3(h)
hereof.  The address of the Stockholders are as set forth on the
signature pages hereto.

     

    (d)           The
Stockholders covenant and agree that they will comply with the prospectus
delivery requirements of the 1933 Act as applicable in connection with sales of
Registrable Securities pursuant to the Registration Statement.

     

    (e)           The
Stockholder acknowledges and agrees that the Shelf Registration Statement and
Prospectus will in part be based on information provided by Sellers pursuant to
the Transaction Documents, and accordingly the Company will have no liability to
the Stockholder for any failure to comply with the Company’s obligations under
this Agreement that is substantially and directly caused by the failure of any
representation or warranty of Sellers pursuant to the Transaction Documents to
be true and correct, or violation of Seller’s covenants pursuant to the
Transaction Documents.

     

    
      
        
        

      

      
        9

        
          

        

      

      
        
        

      

    

    5.      Indemnification.

     

    (a)           Indemnification by the
Company.  The Company will indemnify and hold harmless, the
Stockholders, its Affiliates, and their respective officers, directors, members,
employees, representatives and agents, successors and assigns, and each other
Person, if any, who controls the Stockholders (each, a “Holder Indemnitee”
and collectively, the “Holder Indemnitees’)
within the meaning of the 1933 Act, from and against any losses, claims, damages
or liabilities, joint or several, and expenses (including reasonable attorneys’
fees and disbursements and other reasonable expenses incurred in connection with
investigating, preparing or defending any action, claim or proceeding, pending
or threatened, and the costs of enforcement thereof) to which they may become
subject under the 1933 Act or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based
upon:  (A) any untrue statement or alleged untrue statement of any
material fact contained in any Registration Statement; (B) any preliminary
Prospectus or final Prospectus contained therein, or any amendment or supplement
thereof; (C) any blue sky application or other document executed by the Company
specifically for that purpose or based upon written information furnished by the
Company filed in any state or other jurisdiction in order to qualify any or all
of the Registrable Securities under the securities laws thereof; (D) the
omission or alleged omission to state in any Registration Statement, any
preliminary Prospectus or final Prospectus contained therein, or any amendment
or supplement thereof a material fact required to be stated therein or necessary
to make the statements therein not misleading; (E) any violation by the Company
or its agents of any rule or regulation promulgated under the Securities Act
applicable to the Company or its agents and relating to action or inaction
required of the Company in connection with such registration; or (F) any failure
to register or qualify the Registrable Securities included in any such
Registration Statement in any state where the Company or its agents has
affirmatively undertaken or agreed in writing that the Company will undertake
such registration or qualification; provided, however, that the
Company will not be liable in any such case if and to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
conformity with representations, warranties or certifications made by Sellers
pursuant to the Transaction Documents, or made in conformity with information
regarding a Holder Indemnitee furnished by any Holder Indemnitee in writing
specifically for use in such Registration Statement or Prospectus, or in the
case of an occurrence of an Allowed Delay or of an event of the type specified
in Section 3(h), the use by such Holder Indemnitee of an outdated or defective
Prospectus after the Company has notified the Stockholders in writing that the
Prospectus is outdated or defective and prior to the receipt by the Stockholders
of an amended or supplemented Prospectus, but only if and to the extent that
following the receipt of such amended or supplemented Prospectus the
misstatement or omission giving rise to such liability would have been
corrected.

     

    
      
        
        

      

      
        10

        
          

        

      

      
        
        

      

    

    (b)           Indemnification by the
Stockholders.  The Stockholders agree to indemnify and hold
harmless, the Company, its directors, officers, employees, stockholders and each
Person who controls the Company (within the meaning of the 1933 Act) against any
losses, claims, damages, liabilities and expense (including reasonable attorney
fees) resulting from any untrue statement of a material fact or any omission of
a material fact required to be stated in the Registration Statement or
Prospectus or preliminary Prospectus or amendment or supplement thereto or
necessary to make the statements therein not misleading, to the extent that such
untrue statement or omission is contained in any information regarding a Holder
Indemnitee furnished in writing by a Holder Indemnitee to the Company
specifically for inclusion in such Registration Statement or Prospectus or
amendment or supplement thereto, or in the case of an occurrence of an Allowed
Delay or an event of the type specified in Section 3(h), the use by such Holder
Indemnitee of an outdated or defective Prospectus after the Company has notified
the Stockholders in writing that the Prospectus is outdated or defective and
prior to the receipt by the Stockholders of an amended or supplemented
Prospectus, but only if and to the extent that following the receipt of the
amended or supplemented Prospectus the misstatement or omission giving rise to
such liability would have been corrected.

     

    (c)           Conduct of Indemnification
Proceedings.  Any Person entitled to indemnification under this
Agreement shall (i) give prompt notice to the indemnifying party of any claim
with respect to which it intends to seek indemnification and (ii) permit such
indemnifying party to assume the defense of such claim with counsel reasonably
satisfactory to the indemnified party; provided, however, that any
Person entitled to indemnification hereunder shall have the right to employ
separate counsel and to participate in the defense of such claim, but the fees
and expenses of such counsel shall be at the expense of such Person unless (a)
the indemnifying party has agreed to pay such fees or expenses, or (b) the
indemnifying party shall have failed to promptly assume the defense of such
claim and employ counsel reasonably satisfactory to such Person or (c) in the
reasonable judgment of any such Person, based upon advice of its counsel, a
conflict of interest exists between such Person and the indemnifying party with
respect to such claims (in which case, if the Person notifies the indemnifying
party in writing that such Person elects to employ separate counsel at the
expense of the indemnifying party, the indemnifying party shall not have the
right to assume the defense of such claim on behalf of such Person); and provided, further, that the
failure of any indemnified party to give notice as provided herein shall not
relieve the indemnifying party of its obligations hereunder, except to the
extent that such failure to give notice shall materially adversely affect the
indemnifying party in the defense of any such claim or litigation.  It
is understood that the indemnifying party shall not, in connection with any
proceeding in the same jurisdiction, be liable for fees or expenses of more than
one separate firm of attorneys at any time for all such indemnified parties
except to the extent that based upon advice of counsel, a conflict of interest
exists between the indemnified parties.  No indemnifying party will,
except with the consent of the indemnified party, consent to entry of any
judgment or enter into any settlement that does not include as an unconditional
term thereof the giving by the claimant or plaintiff to such indemnified party
of a release from all liability in respect of such claim or
litigation.

     

    
      
        
        

      

      
        11

        
          

        

      

      
        
        

      

    

    (d)           Contribution.  If
for any reason the indemnification provided for in the preceding paragraphs (a)
and (b) is unavailable to an indemnified party or insufficient to hold it
harmless, other than as expressly specified therein, then the indemnifying party
shall contribute to the amount paid or payable by the indemnified party as a
result of such loss, claim, damage or liability in such proportion as is
appropriate to reflect the relative fault of the indemnified party and the
indemnifying party, as well as any other relevant equitable
considerations.  No Person guilty of fraudulent misrepresentation
within the meaning of Section 11(f) of the 1933 Act shall be entitled to
contribution from any Person not guilty of such fraudulent
misrepresentation.

     

    6.      Miscellaneous.

     

    (a)           Notices.  All
notices or other communications permitted or required under this Agreement shall
be in writing and shall be sufficiently given if and when hand delivered or sent
by facsimile to the Persons set forth below or if sent by documented overnight
delivery service or certified mail, postage prepaid, return receipt requested,
addressed as set forth below or to such other Person or Persons and/or at such
other address or addresses (or facsimile number) as shall be furnished in
writing by any party hereto to the others. Any such notice or communication
shall be deemed to have been given as of the date received, in the case of
personal delivery, or on the date shown on the receipt or confirmation therefor
in all other cases.

     

    To the
Company:

    


    Omega
Healthcare Investors, Inc.

    Suite
3500

    200
Independence Circle

    Hunt
Valley, MD 21030

    Attention:      C.
Taylor Pickett

    Facsimile:       (410)
824-3570

    With a
copy to:

    


    Bryan
Cave LLP

    One
Atlantic Center

    14th
Floor

    1201 West
Peachtree Street, N.E.

    Atlanta,
Georgia  30309-3488

    Attention:      Rick
Miller

    Telephone:     (404)
572-6787

    Telecopier:     (404)
420- 0787

     

    
      
        
        

      

      
        12

        
          

        

      

      
        
        

      

    

    To the
Stockholders:

    


    CapitalSource
Inc.

    4445
Willard Avenue

    12th
Floor

    Chevy
Chase, MD

    Attention:      General
Counsel

    Facsimile:       (301)
841-2380

    


    With
copies to:

    


    Hogan
& Hartson LLP

    555
13th
Street

    Washington,
DC 20004

    Attention:      James
E. Showen

    Facsimile:       (202)
637-5910

    


    (b)           Construction.  Within
this Agreement, the singular shall include the plural and the plural shall
include the singular, and any gender shall include all other genders, all as the
meaning and the context of this Agreement shall require. The parties have
participated jointly in the negotiation and drafting of this Agreement. In the
event an ambiguity or question of intent or interpretation arises, this
Agreement shall be construed as if drafted jointly by the parties and no
presumption or burden of proof shall arise favoring or disfavoring any party by
virtue of the authorship of any of the provisions of this Agreement. Any
reference to any federal, state, local, or foreign statute or law shall be
deemed also to refer to all rules and regulations promulgated thereunder and any
successor statute or law thereto, unless the context requires
otherwise.  Unless otherwise expressly provided, the word “including”
does not limit the preceding words or terms.

     

    (c)           Successors and
Assigns.  This Agreement shall be binding upon and inure to the
benefit of the parties and their respective permitted successors and assigns.
Neither this Agreement, nor any of the rights hereunder or thereunder, may be
assigned by any party, nor may any party delegate any obligations hereunder or
thereunder, without the written consent of the other party hereto or thereto,
provided that
the Stockholders may, without the consent of the Company and without affecting
such Stockholders rights and obligations hereunder, assign Stockholders’ same
rights and obligations under this Agreement to any of their respective
Affiliates or subsidiaries to the extent they are transferees of Registrable
Securities.  This Agreement shall not be construed as giving any
Person, other than the parties hereto and their permitted successors, heirs and
assigns, any legal or equitable right, remedy or claim under or in respect of
this Agreement or any of the provisions herein contained, this Agreement and all
provisions and conditions hereof being intended to be, and being, for the sole
and exclusive benefit of such parties, and their respective permitted
successors, heirs and assigns and for the benefit of no other Person or
entity.

     

    
      
        
        

      

      
        13

        
          

        

      

      
        
        

      

    

    (d)           Amendment and Waiver.
The parties hereto may amend or modify, or may waive any right or obligation
under, this Agreement in any respect, provided that any such amendment,
modification or waiver shall be in writing and executed by each of the Company
and the Stockholders. No waiver of any breach of any provision of this Agreement
shall constitute or operate as a waiver of any other breach of such provision or
of any other provision hereof, nor shall any failure to enforce any provision
hereof operate as a waiver of such provision or of any other provision
hereof.

     

    (e)           Governing Law; Consent to
Jurisdiction. This Agreement is made pursuant to, and shall be construed
and enforced in accordance with, the laws of the State of Delaware applicable to
contracts executed in and to be performed in that State, irrespective of the
principal place of business, residence or domicile of the parties hereto, and
without giving effect to otherwise applicable principles of conflicts of law.
Any legal action, suit or proceeding arising out of or relating to this
Agreement shall be instituted, heard and determined exclusively in any federal
court or in any state court located in Wilmington, Delaware, and each party
hereto hereby waives any objection which such party may now or hereafter have to
the laying of the venue of any such action, suit or proceeding, and hereby
irrevocably and unconditionally submits to the jurisdiction of any such court.
Any and all service of process and any other notice in any such action, suit or
proceeding shall be effective against any party hereto if given as provided in
Section 6(a) hereof. Nothing herein contained shall be deemed to affect the
right of any party to serve process in any other manner permitted by applicable
law.

     

    (f)           Section Headings and Defined
Terms. The section headings contained herein are for reference purposes
only and shall not in any way affect the meaning and interpretation of any of
the provisions of this Agreement. Except as otherwise indicated, all agreements
defined herein refer to the same as from time to time amended or supplemented or
the terms thereof waived or modified in accordance herewith and
therewith.

     

    (g)           Severability.  If
any term or other provision of this Agreement is invalid, illegal or incapable
of being enforced by any rule of law or public policy, all other conditions and
provisions of this Agreement shall nevertheless remain in full force and effect
so long as the economic or legal substance of the transactions contemplated
hereby is not affected in any manner materially adverse to any
party.  Upon such determination that any term or other provision is
invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in a mutually acceptable manner in
order that the transactions contemplated hereby be consummated as originally
contemplated to the fullest extent possible.

     

    
      
        
        

      

      
        14

        
          

        

      

      
        
        

      

    

    (h)           Counterparts.  This
Agreement and the other documents required to consummate the transactions
contemplated herein may be executed in one or more counterparts, each of which
shall be deemed an original (including facsimile and PDF signatures), and all of
which together shall be deemed to be one and the same instrument. The parties
hereto may deliver this Agreement and the other documents required to consummate
the transactions contemplated herein by telecopier machine/facsimile or via
e-mail and each party shall be permitted to rely upon the signatures so
transmitted to the same extent and effect as if they were original
signatures.

     

    (i)   Entire Agreement.
This Agreement constitutes the entire agreement between the parties hereto and
is intended to be a complete and exclusive statement of the agreement and
understanding of the parties hereto with respect to the subject matter contained
herein.  This Agreement supersedes all prior agreements and
understandings (written or oral), with respect to such subject
matter.

     

    (j)   Waiver of Jury Trial.
EACH OF THE PARTIES HERETO HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY
LITIGATION DIRECTLY  OR INDIRECTLY ARISING OUT OF, UNDER OR IN
CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.

     

    (k)           Stockholders’
Agent.  Each Stockholder, for itself and its successors and
permitted assigns, hereby appoints CapitalSource as its agent for purposes of
giving and receiving notices, and all other purposes under this
Agreement.  The Company may rely on instructions and elections from
CapitalSource as binding on each of the Stockholders.

     

    [Remainder of the page is
intentionally left blank.]

    


    
      
        
        

      

      
        15

        
          

        

      

      
        
        

      

    

    IN WITNESS WHEREOF, the
parties have executed this Registration Rights Agreement or caused their duly
authorized officers to execute this Registration Rights Agreement as of the date
first above written.

     

    
      
        	 	OMEGA HEALTHCARE INVESTORS,
      INC.	 
	 	 	 	 
	
                 

              	
                By:
      

              	/s/ C.
      Taylor Pickett	 
	 	Name: C.
      Taylor Pickett	 
	 	Title: Chief
      Executive Officer	 


      

    

     

    


    [Signatures
Continued On Following Page]

    


    


    


     

    


    
 

    


    [REGISTRATION
RIGHTS AGREEMENT SIGNATURE PAGE]

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    

      
        	 	CAPITALSOURCE
    INC.	 
	 	 	 	 
	
                 

              	
                By:
      

              	 	 
	 	Name: 	 
	 	Title: 	 
	 	 	 	 


      

    

     

    
      	 	CHR HUD BORROWER
      LLC	 
	 	 	 	 
	
               

            	
              By:
      

            	 	 
	 	Name: 	 
	 	Title: 	 


      

         

        
          	 	CSE MORTGAGE
    LLC	 
	 	 	 	 
	
                   

                	
                  By:
      

                	 	 
	 	Name: 	 
	 	Title: 	 


          

             

            
              	 	CSE SLB LLC	 
	 	 	 	 
	
                       

                    	
                      By:
      

                    	 	 
	 	Name: 	 
	 	Title: 	 


              

                 

                
                  	 	CSE SNF HOLDING
      LLC	 
	 	 	 	 
	
                           

                        	
                          By:
      

                        	 	 
	 	Name: 	 
	 	Title: 	 


                  

                     

                    
                      	 	CAPITALSOURCE HEALTHCARE
      REIT	 
	 	 	 	 
	
                               

                            	
                              By:
      

                            	 	 
	 	Name: 	 
	 	Title: 	 


                       

                    

                  

                

              

            

          

        

      

    

     

    


     

    [REGISTRATION
RIGHTS AGREEMENT SIGNATURE PAGE]